Commonwealth v. Stitt
| Decision Date | 12 October 2022 |
| Docket Number | 1371 WDA 2021 |
| Citation | 287 A.3d 849 (Table) |
| Parties | COMMONWEALTH of Pennsylvania v. Nickolas Blaine STITT, Appellant |
| Court | Pennsylvania Superior Court |
Nickolas Blaine Stitt (Appellant), appeals pro se from the judgment of sentence imposed after a jury convicted him of possession with intent to deliver (PWID), possession of a controlled substance, and criminal use of a communication facility (CUCF).1 Upon review, we affirm in part, vacate in part, and remand for an ability-to-pay hearing pursuant to 42 Pa.C.S.A. § 9726, and consideration of Appellant's after-discovered evidence claim.
Appellant's convictions arise from his sale of narcotics to a confidential informant (CI) on May 6, 2017. N.T., 12/13/18, at 37, 74. The CI approached Altoona Police Sergeant Christopher Moser and offered to purchase Suboxone from Appellant in the area around the Kettle Inn. Id. at 37, 74-75, 117-18. Thereafter, Altoona Police Sergeant Joseph Merrill strip-searched the CI, and Sergeant Moser provided the CI with $100 in pre-recorded buy money. Id. at 39-40, 76-77, 117, 119. Sergeant Merrill drove the CI to a parking lot near the Kettle Inn. Id. at 77-80. During the drive, the CI used his girlfriend's mobile phone, which had Appellant's name and number, to text Appellant. Id. at 77-80, 105-06, 120-21, 132. Appellant responded and Sergeant Merrill observed the texts in real time. Id. at 121.
Appellant texted the CI to go to Appellant's nearby residence at 714 East Walton Avenue. Id. at 40, 79-80, 120-21. Appellant told the CI he would turn on an outside light. Id. at 80. When the CI arrived, he exited the car and continued to text Appellant due to the CI's difficulty finding the residence. Id. at 81-82. Appellant turned on the outside light and the CI entered the residence; the CI purchased the Suboxone (which took approximately 2 minutes), and exited. Id. at 42, 81-84, 123-24. Neither police officer saw Appellant. Id. at 42, 123-24, 128, 132.
The CI returned to the car and gave Sergeant Merrill the Suboxone. Id. at 43, 84, 123-24. The police and CI drove back to the police station, where Sergeant Merrill conducted a second strip-search of the CI. Id. at 44, 86, 126. The CI drafted a written statement describing the purchase, and Sergeant Moser photographed the texts between the CI and Appellant on the CI's girlfriend's phone. Id. at 44-45, 87, 126-28.
Appellant was subsequently arrested and charged with the above crimes. Id. at 137. Upon arrest, Appellant confirmed his address as 714 East Walton Avenue, and his telephone number as the one the CI texted during the controlled buy. Id. at 138. Also at the time of his arrest, Appellant was on parole and wearing an ankle monitor. Id. at 4. Police confirmed through State Parole Agent Margie Cartwright that the ankle monitor showed Appellant present at East Walton Avenue when the CI purchased the narcotics. Id. at 4-5.
On December 14, 2018, a Blair County jury convicted [Appellant of the above offenses]. On April 2, 2019, ourt sentenced [Appellant] to an aggregate sentence of 33 to 96 months’ incarceration at a State Correctional Institution on the counts of [PWID] and [CUCF]. The [trial c]ourt did not impose a sentence on the count of possession of a controlled substance. [The trial court also ordered Appellant to pay a $500 fine.]
Trial Court Opinion, 1/26/22, at 1-2.
Appellant sought appellate review, which has been delayed by a series of procedural missteps. The trial court explained:
Trial Court Opinion, 1/26/22, at 2-3 (footnote omitted).
Although there is a timeliness issue with Appellant's filing of his notice of appeal, we view the events leading to the filing as constituting a breakdown in the court's process.2 We therefore review the merits of Appellant's issues.
Appellant presents five issues for our review:
In his first issue, Appellant assails the sufficiency of the evidence. When reviewing a sufficiency challenge, we determine "whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all elements of the offense beyond a reasonable doubt." Commonwealth v. May , 887 A.2d 750, 753 (Pa. 2005) (citation omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence." Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (citation omitted). "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.
With respect to CUCF, the Crimes Code provides:
Appellant does not claim the Commonwealth failed to prove the elements of the offense. Rather, he argues the text messages were not properly authenticated and the jury erred in crediting the CI's testimony. Appellant's Brief at 21-22.
Regarding authentication of the text messages:
The admissibility of evidence is a matter within the sound discretion of the trial court and will be reversed only where there is a clear abuse of discretion. Our standard of review of a challenge to an evidentiary ruling is therefore limited. Abuse of discretion is not merely an error of judgment [but is...
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